Natesa Gounder vs Raja Gounder and Others

G. Rajasuria, J.—This second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated 27.2.2002 passed by

the learned Subordinate Judge, Sankari in A.S. No. 65 of 1998 in reversing the judgment and decree dated 26.6.1998 passed by the learned

District Munsif, Tiruchengode in O.S. No. 589 of 1998. The parties, for convenience sake, are referred to here under according to their litigative

status before the trial Court.

Heard both sides.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:

(a) The appellant herein, who happened to be the plaintiff, filed the suit seeking the following reliefs:

To pass a decree in favour of the plaintiff and as against the defendants and their men-

(a) declaring the plaintiffs right and title to the user and enjoyment of the suit cart-track in S. No. 18/3-A/1 and S. No. 18/3-A-2 and

(b) to grant permanent injunction against the defendants and their men by restraining them from in any way obstructing or disturbing the user and

enjoyment of the red coloured portion cart-track in S. No. 18/3-A-2 by obliterating the same and;

*(b)(i) grant mandatory injunction against the defendants and their men and thereby direct them to restore the suit cart-track which was obliterated

in S. No. 18/3-A-2 and for costs. *Plaint amended as per order in I.A. 1296 of 1991 which was dismissed on 17.10.1994 and the order of

dismissal was revised and the amendment was allowed as per the order in C.R.P. No. 80 of 1995 dated 30.10.1996 by High Court of Judicature

at Madras.*

(extracted as such)

(b) Whereas the defendants filed the written statement, challenging and impugning the averments as found set out in the plaint.

(c) The trial Court framed the relevant issues.

(d) During trial, the plaintiff examined himself as P.W. 1 along with P. Ws. 2 and 3 and marked Exhibit A-1 to A-3. On the defendants'' side D2-

Krishnan examined himself as D.W. 1 and marked Exhibits B-1 to B-16 and Court documents Exhibits C-1 and C-2 were also marked.

(e) Ultimately, the trial Court decreed the suit.

(f) Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendants 1 and 2 filed the appeal. Whereupon, the

appellate Court set aside the judgment and decree of the trial Court and dismissed the original suit.

(g) Challenging and impugning the judgment and decree of the first appellate Court, the plaintiff has preferred this second appeal on various

grounds and also suggesting certain substantial questions of law.

My learned predecessor framed the following substantial question of law:

In the face of the recitals in A2 and A3 which expressly grants a right of way over the suit property to reach the Natham land situated in Survey

No. 22, has not the lower appellate Court committed error of law in non-suiting the plaintiff on the ground of availability of an alternate way?

(extracted as such)

After hearing both sides, this Court thought it fit to re-formulate the substantial questions of law to the knowledge of both sides.

In the absence of defendants 1 and 2 or their ancestors, being parties to Exhibits A-2 and A-3, whether any right of pathway contemplated

therein would be binding on D1 and D2?

Whether the survey record Exhibit B5 emerged in favour of the plaintiff, which was subsequently sought to be challenged could be used in

favour of the plaintiff to assert his right?

Whether the concept ""easement of necessity by implied grant"" is applicable in the facts and circumstances of this case?

Whether the first appellate Court as contended by the plaintiff failed to adhere to Order 41 Rule 31 of CPC in disposing of the appeal?

Whether there is any perversity or illegality in the judgment and decree of both the Courts below?

Both sides advanced their arguments on the substantial questions of law framed by me.

All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with one another.

The nitty gritty, the gist and kernel of the case of the plaintiff as stood exposited from the plaint as well as from the case as put forth by him

during the trial would run thus:

(i) The entire survey No. 18/3 originally belonged to one person and it was subsequently divided among the interested co-sharers. In such an

event, for the convenient enjoyment, there emerged the suit pathway, which was running from South to North on the western portion of Survey

No. 18, which pathway was subsequently came to be numbered as 18/3 A.

(ii) As per Exhibit A-3, the partition deed dated 2.7.1924 emerged among the family members would contemplate such pathway as in S. No.

18/3A. While so, holus bolus, the defendants 1 and 2 who are the recent purchasers from some of the co-sharers started dismantling and

demolishing the part of the said pathway in S. No. 18/3A, which necessitated the plaintiff to file the suit.

(iii) Absolutely, there is no other go for the plaintiff to have ingress and egress to his property in Survey No. 18/2.

Per contra, D1 and D2, being the father and the son, challenging and impugning the averments/allegations in the plaint, filed the written

statement, the nitty gritty of it would run thus:

(a) At no point of time, there existed a pathway as contemplated in S. No. 18/3 A. The said sub-division 3-A is a recent origin at the instance of

the plaintiff and that too in collusion with D3.

(b) Exhibit A-2, which emerged between the plaintiff and D2, is one other document, marked purely for the purpose of falsifying the right of the

defendants 1 and 2 over their land in Survey No. 18/3A1 and 18/3A2.

(c) There is an ''iteri'' (pathway) running from East to West direction on the North of the plaintiff''s land and he has been using the said iteri for

passing and re-passing and have ingress and egress to his property.

(d) The contention on the side of the plaintiff that there is no other go for having ingress and egress to his property apart from the suit pathway is

nothing but a falsity, which is quite antithetical to the existing facts.

Accordingly, the defendants prayed for the dismissal of the suit.

The trial Court decreed the suit purely on the basis of ''easement of necessity by implied grant''; whereas the first appellate Court reversed it by

pointing out that in Exhibit A-3, the original predecessor-in-title of D1 and D2 was not a party and hence that would not be binding on D1 and D2.

He would also hold that there was no ''easement of necessity'' as through the ''iteri'' running from East to West to the North of the plaintiffs land, he

could have ingress and egress to the plaintiffs property.

The learned counsel for the plaintiff/appellant would advance his argument, which could pithily and precisely be set out thus:

-The first appellate Court without giving reasons for upsetting the reasoned findings of the trial Court, simply in its cryptic judgment by adhering to

a wrong approach of his own, set aside the judgment and decree of the trial Court. Whereas the trial Court after analysing in detail the

circumstances involved in this case decreed the suit.

-Even though Exhibit A-3, the predecessors-in-title of D1 and D2 were not parties, yet Exhibit A-2 is an ancient document, which contemplated

such pathway. Normally, no one would venture to specify such a common pathway, had really it had not been in existence at all.

-The revenue authorities of their own accord, after surveying the land, gave a specific survey number as 18/3 A to the suit pathway, which cannot

be doubted. However, without any basis, the defendants 1 and 2 objected to such demarcation of the suit pathway as Survey No. 18/3A,

whereupon only, the revenue authorities, simply observed that the Court has to decide on that.

Accordingly, the learned counsel for the plaintiff by inviting the attention of this Court to the evidence available on record would pray for setting

aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court.

Whereas in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for Dl and D2

would pyramid his argument, the pith and marrow of the same would run thus:

-Exhibit A-3 emerged among the family members to which, the predecessor-in-title of Dl and D2, was not a party. In such a case, Exhibit A-3

would have no binding effect on Dl and D2; whereas the trial Court after giving a finding against the plaintiff, granted relief as though the plaintiff is

entitled to use the suit property on the ground of ''easement of necessity by implied grant''. Whereas the first appellate Court, correctly adverted to

the fact that neither D1 and D2 nor their predecessors happened to be a party to Exhibit A-2 and thereby discarded the recitals in Exhibit A-3

relating to the suit pathway.

-Mere unilateral change in the revenue records would in no way confer title in favour of the plaintiff.

-In second appeal only substantial questions of law can be gone into and the factual evidence cannot be re-appreciated.

-The first appellate Court also correctly based on the Commissioner''s report and the sketch has held that the plaintiff is having the right to have

ingress and egress to his property through the iteri concerned.

Accordingly, he would pray for the dismissal of the second appeal.

At the outset itself, I would like to fumigate my mind with the following decisions of the Hon''ble Apex Court:

(i) Hero Vinoth (minor) Vs. Seshammal,

(ii) Kashmir Singh Vs. Harnam Singh and Another,

(iii) State Bank of India and Others Vs. S.N. Goyal,

(iv) Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, , certain excerpts from it would run thus:

It is manifest from a bare reading of the Section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial

question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is

mandatory that such question(s) must be formulated. The expression ""substantial question of law"" is not defined in the act. Nevertheless, it has

acquired a definite connotation through various judicial pronouncements.

22, In Hero Vinoth v. Seshammal (supra), this Court has observed that:

...

(iii) The general rule is that the High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of

the well-recognised exceptions are where (i) the Courts below have ignored material evidence or action on no evidence; (ii) the Courts have drawn

wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to

''decision based on no evidence'', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the

evidence, taken as a whole, is not reasonably capable of supporting the finding.

A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving

at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or

legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.

It is therefore crystal clear from the mere poring over and perusal of the aforesaid precedents that unless there is any perversity or illegality in the

rendering of the finding of facts by both the Courts below, the question of interfering by the High Court u/s 100 of the CPC would not arise.

No doubt, in second appeal there will not be any fresh appreciation of facts because the first appellate Court, happened to be the last Court of

facts. However, in this case because the learned counsel for the plaintiff would vehemently argue by pointing out that the first appellate Court failed

to furnish enough reasons for upsetting the reasoned findings of the trial Court, I thought fit to analyse the evidence also, giving due weightage to the

arguments as put forth on the side of the plaintiff so as to find out as to whether any tinge of truth is involved in the plea of the plaintiff.

Indubitably and indisputably, as revealed by the deposition of D.W. 1 that there is an iteri-cum-odai to the North of the plaintiffs land. It is

therefore just and necessary to find out as to what actually that iteri-cum-odai is, as per the Advocate Commissioner''s report and sketch filed in

Court. The evidence would display and demonstrate that from the ''iteri'' there is possibility of the plaintiff having ingress and egress to his property.

In fact, the said iteri-cum-odai is running from East to West direction and at the western end of that iteri/odai, there is a panchayat road.

The learned counsel for the plaintiff, would submit that there is only an odai (canal) situated to the North of the plaintiffs land; that at any

moment, it might get flooded and there would be no possibility of the plaintiff having ingress and egress to his property through that odai.

However, the learned counsel for D1 and D2 would point out that it is not as though there is only a canal or odai; but between the odai and the

plaintiffs property, there is an iteri, which means a pathway and it is broad enough for having ingress and egress to the plaintiffs property from the

panchayat road referred to in the Advocate Commissioner''s report. This fact has not been considered by the trial Court, however, the first

appellate Court took notice of the same.

The learned counsel for the plaintiff would submit his arguments that if the plaintiff is deprived of his opportunity to have ingress and egress

through the suit pathway to his land, then he has to take a circuitous route so as to say, 3 kms, to pass through the panchayat road and thereafter

through the iteri-cum-odai and reach his property and that would cause hell of trouble, which could be avoided, if the plaintiff is permitted to use

the suit pathway as he has been using all along for generations together.

I recollect and call up the following maxim-ubi jus, ibi remedium-Where there is a right, there is a remedy.

The concept ''easement of necessity'' or ''easement of necessity by implied grant'' is entirely different from claiming right over the property

under a deed or as per easement by prescription. It is therefore, just and necessary to refer to Section 13 as well as Section 15 of the Indian

Easements Act, 1882 and also the decisions emerged thereunder:

Easements of necessity and quasi-easements-Where one person transfers or bequeaths immovable property to another-

(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the

transferee or legatee shall be entitled to such easement; or

(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took

effect, the transferee or legatee shall, unless a different intention is ex-pressed or necessarily implied, be entitled to such easement; or

(c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the

transferor or the legal representative of the testator shall be entitled to such easement; or

(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest

took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled

to such easement.

Where a partition is made of the joint property of several persons,-

(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement,

or

(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took

effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

The easements mentioned in this Section, Clauses (a) (c) and (e) are called easements of necessity.

Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this Section, to be

deemed, respectively, the transferor and transferee.

Acquisition by prescription-Where the access and use of light of air to and for any building have been peaceably enjoyed therewith, as an

easement, without interruption, and for twenty years,

and where support from one person''s land, or things affixed thereto, has been peaceably received by another person''s land subjected to artificial

pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,

and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and

as of right, without interruption, and for twenty years,

the right to such access and use of light or air, support or other easement, shall be absolute.

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the

claim to which such period relates is contested.

Explanation I. Nothing is an enjoyment within the meaning of this Section when it has been had in pursuance of an agreement with the owner or

occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement,

or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfillment of which it is to cease.

Explanation II-Nothing is an interruption within the meaning of this Section unless where there is an actual cessation of the enjoyment by reason of

an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the

claimant has notice thereof and of the person making or authorizing the same to be mad.

Explanation III-Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the

meaning of this Section.

Explanation IV-In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly

the servient heritage.

When the property over which a right is claimed under this Section belongs to the (Government), this Section shall be read as if, for the words

twenty years"" the words (""thirty years"") were substituted.

(i) Justiniano Antao and Others Vs. Smt. Bernadette B. Pereira, and certain excerpts from it would run thus:

9...Since the plaintiff has an access through the southern side of her property, we see no reason why the property of other persons be used as an

access to her house. If the plaintiff had no access to her house except through that of the property of the defendants then perhaps we would have

considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the incumbent has

been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that

since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the

other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the

statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of

right for the last 20 years. More so, we find from the material placed on record and especially the photographs which have been exhibited and

marked as Exhibit DW 3/A in the Court that there are two pillars showing the existence of a gate in the southern side but it has been closed down

by rubble stones. The defendants have put up a strong case that the plaintiff has an opening in the southern side and it is amply established that

there exist two pillars showing the existence of a gate which has been covered by rubble stones in the southern side. It was also pleaded that the

plaintiff was using the same and it is only after 1984 she got the gate constructed through the land of the defendants. Therefore, on the basis of the

evidence and statement of the witnesses, we are satisfied that the first appellate Court has correctly approached the matter and the view taken by

the High Court as well as the trial Court does not appear to be based on correct appreciation of facts.

(ii) Nanjammal and Others Vs. Marappa Gounder and Another, of this Court.

11...It is also borne out from the evidence of the Commissioner and the defendants'' evidence that the plaintiff has other access to his property.

Even though the Commissioner has reported that the alternative pathway suggested by the second defendant is in a difficult terrain, it cannot be a

ground for granting a relief of easement of necessity. The Commissioner himself has reported that in the alternative way, he has found the marks of

cart wheels passing through the same which reach upto the plaintiffs property. Even if there is any difficulty for using the same, Court also will have

to take that factor into consideration while considering the relief sought for by the appellant. In the book on Easements and Licences mentioned

above, the learned Author, while commenting on Section 13, has said thus:

... An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement

of necessary. It can be claimed only when there is absolute necessity for it, i.e., when the property cannot be used at all without the easement and

not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of

necessity, if he has nay other means of access to his land however more inconvenient it may be than by passing over his neighbours.

An easement of necessity is not to be granted merely on the ground of convenience and advantage, but solely on the ground of absolute necessity.

When there are other ways of ingress and exist, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient.

The right of way as easement of necessity implies that there is no other means of access, however, inconvenient. When the dominant tenement

cannot be enjoyed without imposing burden on the servient tenement, then the question of easement of necessity arises. If an alternative way exists

no question of necessity arises.

Whatever may be the difficulty, if there is a way, that will be sufficient to decline the relief sought for by the appellants. The lower appellate Court

has considered the evidence in that regard also, and has rightly come to the conclusion that the plaintiffs are not entitled to any relief.

(iii) Arangasamy Vs. Valarmathy and Gunasekaran, of this Court.

The learned counsel for the plaintiff would reiterate the grounds as found set out in the memorandum of second appeal. Whereas, the learned

counsel for the defendants would appropriately and correctly put forth his argument to the effect that the trial Court in its judgment pointed out that

P.W. 2-the vendor of the plaintiff admitted in unequivocal and unambiguous terms that he himself was not using the suit pathway, but on the other

hand he was having ingress and egress to the property, which was sold by him to the plaintiff, directly from the Road situated to the North of the

said property. As such, the very admission of P.W. 2-the vendor of the plaintiff proved fatal to the case of the plaintiff.

It is also in evidence that from the road situated to the North of the plaintiffs property, the plaintiff is having directly ingress and egress to his

property and his vendor also was using the same. However, certain shops have been built, abetting the said Northern side road and despite such

construction of shops, the plaintiff has been some portion abetting the Northern side road for having ingress and egress to the back portion of his

residential area. The plaintiff cannot artificially create obstacle for himself and claim as of necessity to use the adjacent pathway, over which

apparently and axiomatically he is having no right.

In order to acquire easement by prescription, as per Section 15 of the Indian Easements Act, he should have proved before the Court that he

had been using it for 20 years.

...

The very plaint averments would exemplify and convey as though the plaintiff has been using the suit pathway only for 12 years and there is no

indication that for 20 long years his vendor and following him, the plaintiff has been using it. Both the Courts below adverting to the factual

circumstance, and both oral and documentary evidence, arrived at the finding of fact that over the suit pathway, the plaintiff or his vendor had no

right. Hence, I could see no question of law much less substantial question to interfere with the findings of both the Courts below.

In the memorandum of appeal, the suggested substantial questions of law (a) and (b) are relating to Exhibit C-2-the Advocate Commissioner''s

plain. I am at a loss to understand as to how the plaintiff could place reliance on the Commissioner''s sketch when the evidence discussed supra is

speaking against the claim of the plaintiff. The Commissioner''s report and Sketch could be used only for the limited purpose of highlighting the

physical features and nothing more and the very attempt on the part of the plaintiff to seek support from Exhibit C-2 would show that he has

resorted to waging a lost ditch battle.

(iv) Ponnaiyan @ Ponnusami Gounder, Easwaramurthy, Muthusami and Subbayal Vs. Karuppakkal @ Ponnayal, Thangammal @ Pappathi,

Chinnakkal @ Angammal and Ammani @ Muthulakshmi, of this Court.

On the side of the plaintiff, the following decisions were cited:

Sree Swayam Prakash Ashramam and Another Vs. G. Anandavally Amma and Others,

P. Dhaanakodi and Others v. Alamelu (2011) 2 LW 572 : LNIND 2011 MAD 966 of this Court.

It is therefore, just and necessary to refer to those decisions in seriatim.

(i) The decision of the Hon''ble Apex Court in Sree Swayam Prakash Ashramam and Another v. G. Anandavally Amma and Others (supra)

cited on the plaintiff''s side is distinguishable on facts because in the said precedent, the facts were to the effect that there was a specific permission

given to the plaintiff by the competent person concerned. Certain excerpts from it would run thus:

25...In the absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had

an alternative pathway for access to the ""A"" schedule property, it is difficult to negative the contention of the respondent that since the original

plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had

acquired an easement right by way of an implied grant in respect of the B schedule property of the plaint. It is an admitted position that both A

schedule and B schedule properties of the plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really

implemented by the disciples under the settlement deed executed in favour of the original plaintiff (since deceased). Therefore, the High Court was

perfectly justified in holding that when it was the desire of Yogini Amma to grant easement right to the original plaintiff (since deceased) by way of

an implied grant, the right of the original plaintiff (since deceased) to have B schedule property of the plaint as a pathway could not have been

taken away...

A mere reading of the said excerpt would amply make the point clear that the said case is factually different from this case.

(ii) The decision of this Court in P. Dhaanakodi and Others v. Alamelu (supra) which is relating to a case where the document specifically

contemplates the right of pathway and hence the Court enforced it.

However, here the factual circumstances would show that as per Exhibit A-3, no such right was conferred by D1 and D2''s ancestors in favour

of the plaintiff''s ancestors. When such is the position, the question of pressing into service, Exhibit A-3 as against D1 and D2 is next to

impossibility.

The first appellate Court, au fait with law and au courant with facts adverted to the recitals and the real purport of Exhibit A-3 and held that

such document cannot be pressed into service as against D1 and D2 as the predecessors-in-title of D1 and D2 were not parties to such an

arrangement.

Exhibit A-2 is nothing but a self-serving document and it emerged only between the plaintiff and D3. No doubt, D3 is owning land to the South

of the plaintiff''s land and they during the year 1985, referred to S. No. 18/3 A as a suit pathway, so to say, after the emergence of correction in

the revenue records and they drafted Exhibit A-2 in such a manner that they wanted to have the existing pathway for their convenience. The

relevant portion of Exhibit A-2 is worthy of being reproduced here under:

A plain reading of it would display and demonstrate that they over reached themselves by describing Survey No. 18/3A as their exclusive

property, which version is actually having no back up of evidence. Nowhere it is found set out in the evidence that at one point of time Survey No.

18/3A belonged exclusively to the plaintiff and D3 or their predecessors-in-title. In fact, such a recital would go antithetical to the recitals in Exhibit

A-3, which would contemplate that the parties to Exhibit A-2 were having right of pathway over Raja''s land, viz., the predecessor-in-title of D1

and D2. When such is the recital in Exhibit A-2, I am at a loss to understand as to how in Exhibit A-2, such a blanket recital can find a place.

It is a common or garden principle that generally private easement rights would not be found specified in the revenue maps. If at all, it is a

panchayat road or public way or road in villages, there would be specific marking either as a pathway, or cart-track or iteri, etc. But, curiously

enough, during the year 1982 in the revenue map, it was got corrected as though S. No. 18/3A is a pathway and that sub-division 3A also

emerged in S. No. 18 only during the year 1982. Whereas the plaintiff would try to project and portray that such correction has been made suo

motu by the revenue authorities; but it is having no basis at all.

It appears that D1 and D2 petitioned the authority concerned for rectification; whereupon, they rectified it also obliterating the said sub-division

3A as a pathway. The trial Court also observed that patta or revenue records would not confer title. However, after holding so, without any

documentary evidence, the Court simply held as though it was an admitted fact that S. No. 18 originally belonged to one person only and

thereafter, it was subdivided among several persons and there emerged a pathway etc. But despite, thorough search in the evidence nothing could

be found out that there was any admission on the part of D1 and D2 relating to those facts.

The learned counsel for the plaintiff would try to probabilise his client''s case by pointing out that if really there had been no pathway, in Exhibit

A-3, such reference might not have emerged, for which the learned counsel for D1 and D2 would submit that as in the case of Exhibit A-2, so in

the case of Exhibit A-3, certain self-serving sentences emerged, which cannot be given undue importance.

By way of bringing clarity to the issue, absolutely there is no documentary evidence. But, on the other hand, the case of the plaintiff is solely

based on Exhibit A-2 and Exhibit A-3 and the revenue records coupled with the deposition of P.W. 1 (plaintiff) and P.W. 2. The deposition of

P.W. 2 in my considered opinion, is far from satisfactory. The witness, in fact, over reached himself by going to the extent of pleading that there

was no iteri/canal to the North of the plaintiffs property, even though he admitted at the first instance that there existed such iteri/odai to the North

of the plaintiffs land. As such, he unknowingly exposed himself that he was head over heels in supporting the case of the plaintiff by hook or by

crook.

It cannot be gainsaid that there is iteri/odai to the north of the plaintiffs property. The learned counsel for the plaintiff would submit that at any

time, the Government may slash that iteri portion, which is nothing but a small bank of the odai and whereupon, there will not be any possibility of

the plaintiff having ingress and egress to the property from the panchayat road, which is situated far off from the plaintiffs property; for which the

learned counsel for Dl and D2 would submit that it is not as though as narrated by the learned counsel for the plaintiff; beside the odai, so to say,

the canal, there is only a small bank, which is used as iteri, but it is sufficiently broad enough for having ingress and egress and it is a poramboke

land and Government itself is not going to meddle with that property to the disadvantage of the owners of the adjacent properties and prevent them

from having ingress and egress to their properties from the panchayat road.

No doubt, I could see considerable force in the submission made by the learned counsel for D1 and D2. However, I would like to observe

that if such a situation as foreseen by the learned counsel for the plaintiff might arise, then, in that case, the question of pressing into service

easement by necessity would arise. As of now, it is clear that the plaintiff is having the facility of ingress and egress to his property through the iteri

(pathway) situated to the north of his property. In such a case, his inclination or desire to use the suit property as his pathway from the southern

side would not attract the concept easement by necessity or easement of necessity by implied grant.

In the Hon''ble Apex Court''s judgment referred to in Sree Swayam Prakash Ashramam and Another v. G. Anandavally Amma and Others

(supra) there was already a document and in that document certain rights were contemplated in favour of the plaintiff and the Hon''ble Apex Court

interpreted that document in such a manner that there was implied grant. Here, there was no such document emerged between the rival parties or

their predecessors. In such a case, there is no question of implied grant being pressed into service. However, easement by prescription is entirely a

different concept, which is contemplated u/s 15 of the Indian Easements Act, 1882. Implied grant and the concept easement by prescription are

quite antithetical to each other. If a person is having an implied grant in his favour, then the question of prescription would not arise. But on the

other hand, the concept easement by prescription would come into play, if at all the plaintiff had exercised his right of ingress and egress to his

property over a continuous period of 20 years in another man''s land, openly, uninterruptedly and peacefully, (nec vi, nec clam and nec precario).

The plaintiffs land should be the dominant heritage and the suit property should be servient tenement. There should not be any break of two years

before approaching the Court. As such, the formula 20+2 years is contemplated u/s 15 of the Indian Easements Act, 1882.

It would not be out of place to specify that easement by prescription is different from easement by necessity; for claiming easement by

necessity, the 20 + 2 years concept is having no place. If the plaintiff is having no other way except the suit property, then in that case, the question

of pressing into service the concept easement by necessity would arise.

In this case, the trial Court correctly discarded the concept easement by grant and easement of necessity. However, it went to the extent of

wrongly holding that the plaintiff is entitled to easement of necessity by implied grant when in fact, there are no evidence to that effect. On the other

hand, the first appellate Court correctly considered the ambit and scope of the case and held that the plaintiff could not claim any easement over

the defendants'' property. The plaintiff would contend that the plaintiff and D3 happened to be the absolute owners of the suit pathway in S. No.

18/3A and in such a case, there is no knowing of the fact that as to how a owner himself can claim prescription over his own property. As such,

Exhibit A-2 and the recital therein are antithetical to the plea of the plaintiff in invoking the concept easement by prescription.

The learned counsel for the plaintiff also alternatively would argue that the plaintiff has been using the suit pathway for generations together and

hence, it could be discerned and inferred that he acquired easement by prescription.

To the risk of repetition and pleonasm, but without being tautologous, I would like to point that the antithetical pleas taken by the plaintiff are in

no way helping him to get any relief from this Court.

The question of difficulty in using the iteri for ingress and egress to the plaintiffs property, also cannot be countenanced for the simple reason

that the decision cited on the side of the defendants would unambiguously and unequivocally, pellucidly and palpably highlight and spotlight the fact

that any amount of discomfiture or difficulty in using the pathway would not enure to the benefit of the plaintiff in seeking right of ingress and egress

through another man''s property and the Court cannot render its helping hand to such plaintiff.

Not to put too fine a point on it, my discussion supra would show that the alternate pathway, so to say, the plaintiffs right to have ingress and

egress through the iteri (pathway) might be a difficult one, still he has to get himself satisfied with that.

I would like to make the point amply clear that in the event of the said iteri (pathway) itself is getting disappeared by the act of the Government

or through vis. major or force majoure, then he is having right to approach the Court with a fresh plea of easement by necessity and at that time it

would be considered on merits.

The substantial questions of law are answered to the following effect:

(i) The substantial question of law No. 1 is decided to the effect that in the absence of defendants 1 and 2 or their ancestors, being parties to

Exhibits A-2 and A-3, the right of pathway contemplated therein would not be binding on D1 and D2.

(ii) The substantial question of law No. 2 is decided to the effect that the survey record Exhibit B-5 emerged in favour of the plaintiff, which was

subsequently sought to be challenged could not be used in favour of the plaintiff to assert his right.

(iii) The substantial question of law No. 3 is decided to the effect that the concept ""easement of necessity by implied grant"" is not applicable in the

facts and circumstances of this case.

(iv) The substantial question of law No. 4 is decided to the effect that the first appellate Court as contended by the plaintiff did not fail to adhere to

Order 41 Rule 31 of CPC in disposing of the appeal.

(v) The substantial question of law No. 5 is decided to the effect that there is no perversity or illegality in the judgment and decree of first appellate

Court in reversing the judgment and decree passed by the trial Court.

Accordingly, I am of the considered view that there is no merit in this second appeal and the same is dismissed confirming the judgment and decree

of the first appellate Court.

Appeal dismissed.